Borovkov v Viru County Court, Estonia

Under section 14 of the Extradition Act 2003, the person resisting extradition bears the burden of showing that return would be unjust or oppressive. Unjustness primarily concerns prejudice to the fairness of the trial. Oppression concerns hardship resulting from changes in the person’s circumstances during the relevant period. Delay caused by fleeing, concealing whereabouts or evading arrest ordinarily cannot support either ground. Later delay may be relevant only in most exceptional circumstances, such as an official decision giving rise to a justified sense of security. Ordinary hardship to the person or family is insufficient. Where family circumstances were established after the person should have known that his presence in the United Kingdom was precarious, those circumstances carry limited weight.

The appellant was arrested in Cardiff under a European Arrest Warrant issued by the respondent Estonian court. Westminster Magistrates’ Court ordered his extradition on 16 March 2009. The appellant challenged that order under section 14 of the Extradition Act 2003, relying on the long delay since alleged offences committed when he was 16, the effect of the delay on trial fairness, and his settled family life in the United Kingdom.

The appeal, heard by a single judge pursuant to an order of Collins J, concerned whether the delay and the appellant’s present circumstances made extradition unjust or oppressive.

1. Appeal dismissed. The appellant bore the burden under section 14 of the Extradition Act 2003 of showing that extradition would be unjust or oppressive.
2. Applying the distinction stated in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, unjustness primarily concerns prejudice to the conduct of the trial, while oppression concerns hardship caused by changes in the appellant’s circumstances. The concepts overlap and together address cases where return would be unfair.
3. The appellant had signed documents acknowledging the expert evidence and trial summons. His departure from Estonia shortly before trial, without clear plans or arrangements, justified the conclusion that he had left to avoid the trial. Delay attributable to that conduct could not ordinarily be relied upon.
4. Following Gomes and Goodyear v Government of Trinidad and Tobago [2009] UKHL 21, subsequent fault or inaction by the requesting state did not break the effect of the appellant’s flight. Only most exceptional circumstances, such as conduct creating a justified sense of security that the case would not be pursued, could alter that conclusion. The possible delay between the Estonian authorities learning of the appellant’s whereabouts and issuing the European Arrest Warrant was not exceptional.
5. The appellant conceded that extradition would not be unjust. The material before the court did not show that the passage of time had so compromised the availability of records, witnesses or defence evidence that a fair trial was impossible.
6. Extradition would not be oppressive. The appellant could not rely materially on his relationship and child in the United Kingdom because those circumstances arose when he knew, or should have known, that his presence was precarious and while the relevant delay was attributable to him. Ordinary family hardship was insufficient.

• High Court (Administrative Court): The appeal against the extradition order was dismissed.
• Westminster Magistrates’ Court: District Judge Riddle ordered extradition on 16 March 2009.